MKK/51-75
MKK English ● Article 50. If the principle fails, the accessory also fails. ● Article 51. A thing which fails is not restored; that is to say, that which goes does not return. ● Article 52. When a thing becomes void, the thing contained in it also becomes void. ● Article 53. When the original undertaking cannot be carried out, the equivalent thereof is carried out. ● Article 54. A thing which is not permissible in itself, may be permissible as an accessory. Example:- It is not permissible for purchaser to make the vendor his agent to receive the thing sold; but it he gives a sack to the vendor to measure and put therein the provisions which he has brought and the vendor puts the provisions into the sack, the purchaser thereby receives them impliedly and as an accessory. ● Article 55. A thing which is not permissible at the outset may become permissible at some later period. Example:- The disposal of a share of undivided jointly owned property by way of gift is invalid, but if a person entitled to a share of undivided jointly owned property which has been bestowed by way of gift appears and takes possession thereof, the gift does not become the property of the recipient of the gift. ● Article 56. Continuance is easier than commencement. ● Article 57. A gift becomes absolute only when delivery thereof is taken. Example:- A person bestows a thing upon another person by way of gift. Such gift is not binding until delivery thereof has been taken. ● Article 58. The exercise of control over subjects is dependent upon the public welfare. ● Article 59. Private guardianship is more effective than public guardianship. Example:- The guardianship exercised by the trustee of a pious foundation is more effective than the guardianship of the court. ● Article 60. A word should be construed as having some meaning, rather than passed over in silence. That is to say, if any particular meaning can be attributed to a word, it may not be passed over as devoid of meaning. ● Article 61. When the literal meaning cannot be applied, the metaphorical sense may be used. ● Article 62. If no meaning can be attached to a word it is disregarded altogether. That is to say, if a word cannot be construed in either a literal or metaphorical sense it is passed over in silence as being devoid of meaning. ● Article 63. A reference to part of an indivisible thing is regarded as a reference to the whole. ● Article 64. The absolute is construed in its absolute sense, provided that there is no proof of a restricted meaning either in the text of the law or by implication. ● Article 65. A description with reference to a thing present is of no effect, but the contrary is the case if such thing is not present. Example:- When a vendor who is about to sell a grey horse, such grey horse being present at the meeting where the sale took place, states that he is selling a brown horse for so many thousand piastres, his offer is held to be good and the word brown is of no effect. But if he sells a grey horse which is not present and he describes it as brown, the description is held to be good but the sale is not concluded. ● Article 66. A question is considered to have been repeated in the answer. That is to say, in the event of a question being answered in the affirmative, the person answering the question is considered to have repeated the question. ● Article 67. No statement is imputed to a man who keeps silence, but silence is tantamount to a statement where there is an absolute necessity for speech. That is to say, it may not be said that a person who keeps silence has made such and such a statement, but if he keeps silence where he ought to have made a statement, such silence is regarded as an admission and statement. ● Article 68. In obscure matters the proof of a thing stands in the place of such thing. That is to say, obscure matters concerning which it is hard to discover the truth are judged according to the obvious proof concerning them. ● Article 69. Correspondence takes the place of an exchange of conversation. ● Article 70. The sign of a dumb person which are generally recognised take the place of a statement by word of mouth. ● Article 71. The word of an interpreter is accepted in every respect. ● Article 72. No validity is attached to conjecture which is obviously tainted by error. ● Article 73. Probability, even though based upon evidence, is not proof. Example:- If a person admits while suffering from mortal sickness that he owes a certain sum of money to one of his heirs, such admission is not a proof unless confirmed by the other heirs, since the probability of such person defrauding the other heirs of their property is based upon the mortal sickness . If the statement, however, is made while in a state of good health, such admission is considered to be valid. The probability is that case is mere supposition and consequently there is no objection to the validity of the admission. ● Article 74. No weight is attached to mere supposition. ● Article 75. A thing established by proof is equivalent to a thing established by ocular inspection. MKK 50-75 Aslı Madde 50 - Asıl sâkıt oldukda fer' dahi sâkıt olur. MC. MC/81, MC/661, MC/662, MC/1527, MC/1530 Madde 51 - Sâkıt olan şey avdet etmez. Ya'ni giden geri gelmez. Madde 52 - Bir şey bâtıl oldukda anın zımmındaki şey dahi bâtıl olur. MC. MC/175, MC/523, MC/1566.; MA. 41.; TCK. 49, 50, 51, 60.; TBK ı, 6, 113; HUMK. 234 Madde 53 - Aslın îfâsı kâbil olmadığı halde bedeli îfâ olunur. MC. MC/488, MC/489, MC/891.; TBK. 43. Madde 54 - Bizzat tecvîz olunmayan şey bi't-teba' tecviz olunabilir. Meselâ, müşteri mebî'i kabz için bâyi'i tevkîl etse câiz olmaz. Amma iştira eylediği zahîreyi ölçüp koymak için bâyi'a çuvalı verip dahi zahîreyi çuvala edicek zımnan ve teb'an kabz bulunur. ???mMadde Meseli, 55 hi12s:-i' - İbtidâen şâ9ylayı tecviz olunmayan şey bakâen tecviz olunabilir. hibe etmek sahîh değildir. Amma bir mâl-ı mevhûbun bir hisse-i şâyi'asina bir müstahlik çıkıp da zabtetse hibe bâtıl olmayıp hisse-i bâkiye-i mevhûbün lehin malı olur. MC. MC/19, MC/24, MC/430, MC/858, MC/1466.; TMK. 2 Madde 56 - Baka' ibtidâdan esheldir. MC. MC/55, MC/429, MC/430.; TMK. 2 Madde 57 - Teberru' ancak kabz ile tamam olur. Meselâ, bir adam birine bir şey hibe etse kable'l-kabz hibe tamam olmaz. Madde 58 Raiyye yani teb'a üzerine tasarruf maslahatâ menuttur. Madde 59 Iltejelllîl-i Velâyet-i hâssa velâyet-i âmmeden akvadır. Meselâ, vakfın velâyeti kadınin velâyetinden akvadır. TMK. 262, 265, 266, 267, 272, 275, 405.; MC. MC/974, MC/975. Madde 60- Yani bir kelâmın bir manaya hamli mümkün oldukça ihmâl yani manasız i vamamalıd MC, MC/40, MC/61, MC/1456.; TMK. ı, 2.; TBK. 18. Madde 61 - Ma'nây-ı hakîkî mütaazzir oldukta mecaza gidilir. MC.MC/40, MC/60, MC/62, MC/1517.; TMK. ı, 2.; TBK. 18. Madde 62 - Bir kelâmın i'mâli mümkün olmaz ise ihmâl olunur. Yani bir kelamın hakîkî ve mecâzî bir manaya hamli mümkün olmaz ise o halde mühmel yani manasız bırakılır. MC. MC/60, MC/61, MC/1577, MC/1629, MC/1697.; TMK. ı, 2.; TBK. 18. Madde 63 - Mütecezzi olmayan bir şeyin bazını zikretmek küllünü zikr gibidir. MC. MC/60, MC/1041.; MA. 31, 36.; TBK. ı, 6.; HUMK 234. Madde 64 - Mutlak ıtlakl üzere cârî olur. Eğer nassan yahut delâleten takyîd delîli bulunmaz ise. MC. MC/1, MC/2, MC/571, MC/572, MC/573, MC/819, MC/820, MC/1494, MC/1495, MC/1478, MC/1482, MC/1483, MC/1484.; TBK. 180.; HUMK 234. Madde 65 - Hazırdaki vasıf lağv ve gaibdeki vasıf muteberdir. Meselâ, meclis-i hazır olan bir kır atı satacak olduğu halde şu yağız atı şu kadar bin kuruşa satdım dese icabı muteber olup yağız tabiri lağv olur amma meydanda Olmayan bir kır atı yağız deyu satsa vasıf mu'teber olmakla bey' mün'akid ol- MC. MC/107, MC/208,.; TMK ı, 2.; TBK. 18, 31. Madde 66 - Sual cevapta iâde olunmuş addolunur. Yani tasdik, olunan bir sualde ne denilmiş ise mûcib onu söylemiş hükmündedir. Madde 67 - Sâkit'e bir söz isnâd olunmaz. Lâkin ma'raz-ı hâcette sükût beyandır. Yani, sükût eden kimseye şu sözü söylemiş oldu denilemez, lâkin söyleyecek yer- MC. MC/281, 377]], 438]], 596]], MC/773, MC/805, MC/843, MC/847, MC/971, MC/1451, MC/1452, MC/1485, MC/1659, MC/1822.; HUMK 234.; TBK ı, 6, 31, 198-200, 221, 263, 387, 428. Madde 68 - Bir şeyin umûr-u bâtınada delili ol şeyin makâmına kâim olur. Yani hakîkatine olan umûr-l bâtınada delîl-i zâhirîsi ile hükm olunur???. MC. MC/67, MC/183, MC/344, MC/769, MC/770, TMK 3. Madde 69 - Mükâtebe muhâtaba gibidir. MC. MC/436, MC/1607, MC/1610, MC/1736.; TEK 5, 10. Madde 70 - Dilsizin işaret-i malhûdesi lisan ile beyân gibidir. Madde 71 - Tercümanın kavli her hususda kabul olunur. Madde 72 Hatâsı zâhir olan zanna i'tibar yoktur. MC. 914, 1061, MC/1838.; TMK. ı, 2.; TBK. 18.; HUMK. 236, 254. Madde 73 - Senede müstenid olan ihtimal ile hüccet yoktur. Meselâ, bir kimse veresesinden birine şu kadar kuruş borcu olduğunu ikrâr hücc:ettiği takdirde eğer maraz-ı mevtinde ise diğer verese tasdik etmedikçe bu ikrârı değildir. Zira eğer vereseden mal kaçırmak ihtimali maraz-ı mevte müsteniddir. amma hal-i sıhhatda ise ikrârı mu'teber olur ve ol halde olan ihtimal mücerred bir nevi te- MC.MC/72, MC/74, MC/1568, MC/1578.; HUMK. 236, 254. Madde 74 - Tevehhüme i'tibar yokdur. MC. MC/72, MC/73, MC/75, MC/1013, MC/1161, MC/1192, MC/1741.; MA. 92. Madde 75 - Bürhan ile sâbit olan şey ıyânen sabit gibidir. ● Article 50. If the principle fails, the accessory also fails. ● Article 51. A thing which fails is not restored; that is to say, that which goes does not return. ● Article 52. When a thing becomes void, the thing contained in it also becomes void. ● Article 53. When the original undertaking cannot be carried out, the equivalent thereof is carried out. ● Article 54. A thing which is not permissible in itself, may be permissible as an accessory. Example:- It is not permissible for purchaser to make the vendor his agent to receive the thing sold; but it he gives a sack to the vendor to measure and put therein the provisions which he has brought and the vendor puts the provisions into the sack, the purchaser thereby receives them impliedly and as an accessory. ● Article 55. A thing which is not permissible at the outset may become permissible at some later period. Example:- The disposal of a share of undivided jointly owned property by way of gift is invalid, but if a person entitled to a share of undivided jointly owned property which has been bestowed by way of gift appears and takes possession thereof, the gift does not become the property of the recipient of the gift. ● Article 56. Continuance is easier than commencement. ● Article 57. A gift becomes absolute only when delivery thereof is taken. Example:- A person bestows a thing upon another person by way of gift. Such gift is not binding until delivery thereof has been taken. ● Article 58. The exercise of control over subjects is dependent upon the public welfare. ● Article 59. Private guardianship is more effective than public guardianship. Example:- The guardianship exercised by the trustee of a pious foundation is more effective than the guardianship of the court. ● Article 60. A word should be construed as having some meaning, rather than passed over in silence. That is to say, if any particular meaning can be attributed to a word, it may not be passed over as devoid of meaning. ● Article 61. When the literal meaning cannot be applied, the metaphorical sense may be used. ● Article 62. If no meaning can be attached to a word it is disregarded altogether. That is to say, if a word cannot be construed in either a literal or metaphorical sense it is passed over in silence as being devoid of meaning. ● Article 63. A reference to part of an indivisible thing is regarded as a reference to the whole. ● Article 64. The absolute is construed in its absolute sense, provided that there is no proof of a restricted meaning either in the text of the law or by implication. ● Article 65. A description with reference to a thing present is of no effect, but the contrary is the case if such thing is not present. Example:- When a vendor who is about to sell a grey horse, such grey horse being present at the meeting where the sale took place, states that he is selling a brown horse for so many thousand piastres, his offer is held to be good and the word brown is of no effect. But if he sells a grey horse which is not present and he describes it as brown, the description is held to be good but the sale is not concluded. ● Article 66. A question is considered to have been repeated in the answer. That is to say, in the event of a question being answered in the affirmative, the person answering the question is considered to have repeated the question. ● Article 67. No statement is imputed to a man who keeps silence, but silence is tantamount to a statement where there is an absolute necessity for speech. That is to say, it may not be said that a person who keeps silence has made such and such a statement, but if he keeps silence where he ought to have made a statement, such silence is regarded as an admission and statement. ● Article 68. In obscure matters the proof of a thing stands in the place of such thing. That is to say, obscure matters concerning which it is hard to discover the truth are judged according to the obvious proof concerning them. ● Article 69. Correspondence takes the place of an exchange of conversation. ● Article 70. The sign of a dumb person which are generally recognised take the place of a statement by word of mouth. ● Article 71. The word of an interpreter is accepted in every respect. ● Article 72. No validity is attached to conjecture which is obviously tainted by error. ● Article 73. Probability, even though based upon evidence, is not proof. Example:- If a person admits while suffering from mortal sickness that he owes a certain sum of money to one of his heirs, such admission is not a proof unless confirmed by the other heirs, since the probability of such person defrauding the other heirs of their property is based upon the mortal sickness . If the statement, however, is made while in a state of good health, such admission is considered to be valid. The probability is that case is mere supposition and consequently there is no objection to the validity of the admission. ● Article 74. No weight is attached to mere supposition. ● Article 75. A thing established by proof is equivalent to a thing established by ocular inspection. Kategori:MKK Kategori:Mecelle Kategori:Mecelle-i Ahkâm-ı Adliye Kategori:MECELLE